HuffPo Gets Law & Religion Wrong

Every once in a while, I come across an article that is so stupefying that I have to reread it several times to make sure that what I am seeing is real. I had one of those moments last week when I stumbled across an article on the Huffington Post written by James Peron, President of a group called the Moorfield Storey Institute.

The article, titled “Bigotry for Me, But Not for Thee: The Religious Right and Its Selective Use of Anti-Discrimination Law,” seeks to paint conservative religious individuals as groups who want to protect their personal hatred for gays by claiming “special rights” under the law to discriminate, rights that Peron claims no one else has. Peron’s argument is based largely off of misinformation about U.S. law.

And boy, it is a doozy of a read.

Peron opens by arguing that the “lie” told by the religious right is that it is upholding liberty. Citing the recent complaint filed by former football player and (for one day) Fox Sports host Craig James, which claims that James was fired by Fox Sports after Fox learned about past statement he had made opposing gay marriage, Peron gets into his first salvo:

Here you get to the crux of what fundamentalist policy groups are attempting to do: They want to establish an inequality of rights, giving them rights denied to all other Americans.

A SHRB means they can’t be discriminated against, at least according to their filing in Texas, while a SHRB allows them to discriminate against anyone else. In their eyes, the law is supposed to be a one-way street protecting them, and only them. They may discriminate to their heart’s content, but all other Americans are bound by anti-discrimination legislation.

A non-religious bigot is out of luck in the views of the Christian right. Only bigotry founded in religious justification should exempt one from the law.

First, let’s get the obvious bias out of the way: he automatically defaults to Christians as the only group who are raising religious liberty issues. It is obvious that Christian groups have been among the biggest voices in recent legal debates, but they are by no means the only ones who face issues under the law. Just take the recent case of two Muslim truckers from Illinois who were fired for refusing to transport alcohol, an act they believed was against the tenants of Islam.

Moving on, Peron then makes the following claim:

Consider what this law really would have meant. If a “sincerely held religious belief” exempts one from certain laws–and how widely this would apply apply is not yet determined–then a couple of things have to happen. First, government has to differentiate between “religious” belief and nonreligious beliefs. One is exempt; the other is not. Second, government gets to decide which beliefs are “sincerely held” and which are not. This is inviting government to intrude in religious matters at an unprecedented level, to the point of deciding which religious beliefs it will acknowledge as “sincerely held.”

Peron clearly does not know the history of Supreme Court law, or else he would know that the Supreme Court has been discussing the issue of “sincerely held religious beliefs” for decades.

In United States v. Ballard, the Supreme Court ruled that while a courtroom is not an appropriate place to judge the truth or falsity of a religion, juries may be correctly called upon to determine the sincerity of a party’s religious beliefs. Further, in a series of cases on unemployment compensation that started with Sherbert v. Verner and ended with Frazee v. Illinois Department of Employment Security, the Supreme Court has recognized several different varieties of religious beliefs as sincerely held. Frazee even went so far as to hold that a belief can still be sincere even if it isn’t borne out of membership in a particular religious tradition.

The existence of these cases alone suggests that not only can a religious belief be evaluated by a jury to be sincerely held, but also that a court can in fact make rulings based on the sincerity of that belief. Peron is completely wrong to argue that the courts would massively overstep their authority if they “begin” deciding what is and is not a sincerely held religious belief. Courts can do it, they already have done it, and they will continue to do it.

On the basis of those determinations, government will then grant privileges to some, denied to the rest of us. This is establishment of religion on the installment plan.

Certainly, if you believe the religious right, you would think every other anti-discrimination case is about sexual orientation. In fact, that isn’t the case. There are far more cases where religious people claim they are being discriminated against — sometimes in the most dubious of circumstances.

In 2009 alone there were 3,386 religious discrimination cases filed with the Equal Employment Opportunity Commission. Businesses had to pay out $7.6 million in compensation. Since then, the numbers have gone up, and none of this includes cases brought only at the state or municipal levels. But, you won’t hear the religious right talking about these cases; instead it will focus entirely on a tiny number of cases of anti-gay discrimination, portraying themselves out as victims of litigation, even as it pursues using the very laws they damn.

Not only is Peron uninformed about how religious beliefs are handled by the courts, but he apparently has not put together from his own facts that religious beliefs are already protected under U.S. law. These protections stem not only from the First Amendment, but also from laws like Title VII of the Civil Rights Act of 1964, which specifically prohibits unfair employment practices exercised on the basis of a worker’s “race, color, religion, sex, or national origin,” and the Religious Freedom Restoraction Act of 1993, which states in part that, with some exceptions, “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”

The EEOC cases Peron cites exist specifically because the law protects religious individuals from employment discrimination. However, this has resulted in conflicts when new protections extended to LGBT individuals come into conflict with religious individuals or groups who have traditionally benefited from previous Title VII and First Amendment protections. Because the Constitution and laws like Title VII were not crafted or amended with LGBT rights in mind, local governments are now stepping in to issue protections as they see fit, and those protections are crossing into areas where religious liberty protections have held sway.

This is why the slew of cases involving religious businesses or religious employees that object to gay marriage are so important. Because many of these laws are so new, there is no clear legal answer for how these newly-granted protections for LGBT individuals stack up against already-protected First Amendment religious liberties.

Peron’s claim that religious individuals who file EEOC claims are hypocritical could not be further from the truth. Rather than trying to seek special “exemptions” to “hate” others, the religious parties in these recent big cases (like Sebelius v. Hobby Lobby, which the Supreme Court will hear oral arguments for next week) simply want the law to continue protecting them–as it has before under the First Amendment, laws like Title VII, and EEOC regulations–in light of a changing social landscape.

Peron concludes by citing a litany of those more recent cases–many of which seem to suffer from the same under-researched and biased presentation as his main arguments–before making his final claim:

The religious right is not making a principled case that employers should have the right to discriminate, since it quite explicitly rejects that argument when using anti-discrimination laws on its own behalf. What it wants are privileges that apply only to itself, and detrimental laws specifically aimed at gay and lesbian people. This is what “religious freedom” means to the religious right.

The entirety of that conclusion, as I have already demonstrated, is baseless. There is no hypocrisy, actual or implicit, present here. Religious groups, in their view, merely want to continue to receive protection for their beliefs from already-existent laws–as they have always had in this country.

My goal here is not to take a stance one way or the other on gay marriage. Rather, I want to point out just how little some people who present themselves as authorities (like certain Presidents of certain Institutes) actually understand about the current state of religion and the law. Legal scholars are divided over the issue of how LGBT rights should square up with religious liberty, and likely will be for years to come. However, a divided opinion on the issue is no excuse for sloppy, uninformed, or ignorant arguments like the one Mr. Peron wrote for the Huffington Post’s blog.

The fact that HuffPo chose to run this clearly under-researched article on their blog only demonstrates how easily misinformation about law and religion in the United States can spread. Without leaders willing to make accurate and informed statements on these issues, the public will never have an accurate understanding of religion in the United States.

About The Author

David Giffin (@D_Giffin) is a recent graduate of the Wake Forest University School of Law, and also holds a Masters in Theological Studies from the Candler School of Theology at Emory University in Atlanta, Georgia. He has been with TheCollegeConservative since early 2012, and currently serves as Editor-in-Chief.
In addition to writing and editing for TCC, David has also written as an op-ed contributor for The Emory Wheel student newspaper, and served as the Candler legislative representative for the Emory Graduate Student Government Association. More recently, David served as the President of the Wake Forest Law chapter of the Federalist Society.